Schuette and Antibalkanization

By Weiss, Samuel; Kinder, Donald | The William and Mary Bill of Rights Journal, March 2018 | Go to article overview

Schuette and Antibalkanization


Weiss, Samuel, Kinder, Donald, The William and Mary Bill of Rights Journal


INTRODUCTION

On November 7, 2006, the voters of the State of Michigan enshrined into their constitution an amendment that prohibited the use of affirmative action in higher education admissions.1 The voter-ballot initiative, "Proposal 2," passed with approximately 58% of the vote after a year of contentious debate.2 Civil rights groups quickly filed suit, alleging that the amendment violated the Federal Constitution's Equal Protection Clause under the political restructuring doctrine, which forbids states from placing undue burdens on minority groups' access to the political process.3 Nearly eight years later, the United States Supreme Court concluded the litigation by finding in Schuette v. Coalition to Defend Affirmative Action4 that the amendment banning affirmative action was constitutionally permissible.5

Justice Kennedy's controlling plurality began by reiterating the existence of the political restructuring doctrine but limiting its application.6 This move was foreseeable given the ambiguous scope of the political restructuring doctrine and the ambitious claim of the amendment's challengers-that affirmative action, a practice the Court "barely tolerate[d],"7 would receive Constitutional protection from a direct vote seeking to eliminate it.

Kennedy concluded his opinion with a lengthy ode to the merits of political debate, particularly on the contentious issue of race.8 He wrote:

An informed public can, and must, rise above [racial division]. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.9

Amidst the soaring rhetoric in his coda, Kennedy made two empirical claims on the relationship between voters and Proposal 2. First, Kennedy claimed that the Amendment arose from opposition to racial divisiveness.10 It "was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it."11

Second, Kennedy claimed that citizens respond to campaigns like the ones for and against Proposal 2 by speaking, debating, and learning before acting.12 Rational deliberation "rise[s] above" racial divisiveness.13 Judicial intervention into this sensitive area would invite "rancor or discord based on race" while public debate would "avoid" it.14

Kennedy's empirical claims about the relationship between public referenda and racial sentiments may appear tangential to the political restructuring doctrine, but they are consistent with a line of Fourteenth Amendment cases that "reason[] from antibalkanization values."15 The decisive opinions in a number of the most significant race cases of the past several decades have upheld racial classifications but restricted them, expressly demonstrating the concern for social disharmony that "both extreme racial stratification and unconstrained racial remedies can engender."16 Antibalkanization as a Fourteenth Amendment principle helps to explain why in 2003 the Court forbade quantitative affirmative action for the University of Michigan's undergraduate admissions but permitted qualitative affirmative action in its law school admissions,17 and why race-conscious remedies have been held permissible in school desegregation cases where facially racial remedies were not.18

Early in 2006, as the Proposal 2 campaign began to gather steam, one of us, as a political scientist, was interested in the same questions of the relationship between public campaigns and racial sentiments that years later would occupy the Court. Kinder and his colleague Nancy Burns designed a pair of coordinated and simultaneous surveys, one carried out in the state of Michigan, the other carried out in the country as a whole. …

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